Chapter V. Problems and progress observed in the application of the principle of equal remuneration

Section 1: Application of the principle in the public sector

A. The public administration as employer

199. In 1975, the Committee pointed out in paragraph 77 of its General Survey that there had been a significant increase in public employment as a result of increased state intervention in many activities. Today it would appear, however, that because of the economic recession and the need to stabilise budgets, and with the introduction of policies designed to reduce the role of the public sector in the national economy, the tendency is for the public service workforce to remain at the same level or even decline in a number of market-economy countries. (Joint Committee on the Public Service, Third Session, Geneva, 1983, General Report, page 4.) Staff stabilisation or reduction policies are being implemented in industrialised countries (Belgium, Federal Republic of Germany, Japan, Switzerland, Sweden, United Kingdom, United States, where the level necessary to maintain the operation of the public service seems to have been attained. However, in many developing countries (Honduras, India, Madagascar, Mauritius, Panama, staff expansion is still encouraged because of the role played by the public service as a development agent, particularly in employment policy. Although staff expansion is not so general as during the last decade, the public sector is none the less a primary source of employment in almost all countries. The importance of state-dependent employment is increased by the State's potential influence on the private sector not only through its economic and social policy but also through its own staff policy.

200. The staff policy of public service administrations is governed by forces that differ from those of private undertakings, the latter being normally subject to market forces whereas the public employer is primarily bound by government policy which is directed more towards social considerations. In so far as the State as employer is subject to the principles which it recommends for general application, and because of the size of state-dependent employment, the public sector plays a key role in the general implementation of the Government's social policy and thus with respect to equality of remuneration, especially since a significant number of women work in the public sector.

201. Women in the public service. According to the General Report of the Joint Committee on the Public Service, the number of women employed in the public service is steadily increasing in many countries. In Mauritius, it rose by 62 per cent between 1974 and 1980, and in Colombia, where the proportion of female public officials was previously one in six, it went up to one in three in 1980. The number of women staff in the public service in Finland between 1976 and 1980 also rose more than that of men (by 10.2 per cent against 1.7 per cent). In some sectors, such as health and education, women now sometimes exceed the number of men, according to the Report. In France and Portugal, for instance, there is a majority of women in teaching (63.9 per cent and 76.3 per cent respectively). But although there has been a positive development with respect to the access of women to the public service, it should be stressed that in some countries they are strongly represented among the auxiliary and non-permanent staff (in France, for instance, they represent 54.8 per cent of the categories without permanent tenure) and that they are still under-represented in the higher categories. In the United Kingdom, in 1980, out of 541, 777 officials in the non-industrial civil service, there were 293,164 men and 248,613 women; the majority of the women were employed in the general category where they also outnumbered men (132,128 as against 104,887). At the open structure (Endnote 1) levels there were 782 men and 30 women and in the highest grades, 68 men and one woman. In Latin America, the global figures show that the share of women staff is greater among the staff employed by the State (45 per cent on average) than in private employment (36 per cent), but that women occupy only 23 per cent of the higher posts (such as administrators, managers) in the service of the State. (Endnote 2)

B. The principle of equality of remuneration in the standards applicable to the public service

202. Constitutional guarantees. Public servants, in principle, like all other citizens, enjoy the constitutional guarantees in force with respect to equality of treatment and remuneration. Many constitutions contain a special provision on the equality of citizens with respect to access to and conditions of public employment. (Endnote 3) In some countries, constitutional guarantees may be invoked in the courts by anyone, whoever his or her employer may be; (Endnote 4) elsewhere this course is open to persons in the service of the State. (Endnote 5)

203. Generally applicable legislation. In a number of countries, the provisions on equal pay in labour laws or in acts adopted to protect workers in general against discrimination in employment or remuneration are also applicable to the public sector. (Endnote 6) Sometimes, however, the latter exclude state or local authority workers (Endnote 7) or public servants. (Endnote 8) Labour Codes and other more general legislation mentioning the principle of equality of remuneration are often not applicable to public servants. (Endnote 9) This exclusion is generally connected with the existence of laws or regulations applicable only to the public sector, which sometimes explicitly mention the principle of equality of remuneration. But this is not always the case and the Committee has often asked governments what provisions ensure that the principle is applied to public servants where the public service is explicitly excluded from the field of application of legislation ensuring equality of remuneration in general.

204. Formal neutrality of specific legislation and systems of remuneration in the public sector. In most countries, employment and remuneration in the public service are governed by special legislation. Normally, this does not distinguish between men and women workers, and a number of governments have indicated that equality of remuneration in the public service is ensured because the systems of remuneration are based on post classifications which do not mention the sex of the incumbents. However, as the Committee observed in paragraph 78 of its general survey of 1975, most of the classifications have been drawn up not for the purpose of applying the principle of equal pay but to establish the grading system which is indispensable in any public administration. This does not prevent indirect discrimination, some examples of which will be given in paragraphs 206 et seq. When the general provisions on equality of treatment do not apply to the public sector, the principle of equality of treatment or pay should be included in legislation specifically applicable to this sector, with a view to its systematic application to post classifications and the various components of remuneration.

205. The wording of the principle in legislation specific to the public sector. Increasingly, legislation concerning the public sector explicitly refers to the principle of equal pay or contains a general prohibition of discriminatory treatment. The formulas and criteria already reviewed in Chapter III regarding generally applicable legislation are found here, too. Some laws on the public service (Endnote 10) or on state corporations and undertakings (Endnote 11) provide that no distinction shall be made between the sexes in the application of the Act, but do not give statutory effect to the principle of equal treatment or equal pay. Other laws guarantee equal remuneration for the same (Endnote 12) or for equal (Endnote 13) or similar (Endnote 14) work or for work of equal value (Endnote 15) or comparable worth. (Endnote 16) The scope of these formulas is often elucidated by further criteria or by provisions concerning job evaluation. (Endnote 17) Where concepts of more limited scope had been included in legislation applicable to the public service (which had often broken new ground in the area of equal treatment and equal remuneration) solutions have generally been found to extend to public sector workers the wider protection provided by legislation applicable to the private sector which was adopted at a later date. (Endnote 18) In more recent public service legislation there is a general prohibition on discrimination, inter alia, in remuneration. (Endnote 19)

C. Some examples of problems encountered and progress achieved in the public sector

206. To the extent that pay scales in the public sector are generally established by legislation and are based on post classifications that do not mention the incumbent's sex, direct discrimination between men and women has vanished from basic remuneration. Inequalities that may nevertheless subsist have been brought to light, particularly in countries that have already adopted provisions to eliminate discrimination based on sex, through active policies pursued by governments in co-operation with occupational organisations. A determined investigation of the problems which stand in the way of implementing the principle of equality of remuneration indeed leads to wider disclosure of existing discrimination and, consequently, to the identification of the necessary solutions.

207. There are various explanations for the different types of discrimination observed. They can result from the criteria chosen for post classification and the establishment of pay scales, either because they do not make room for the concept of work of equal value or because difficulties in understanding this concept -- which are related to the de facto inequality of access to various jobs -- have not been solved. Inequalities in the payment of certain additional emoluments (such as marriage or family allowances, housing, pensions) stem from an inequality of men and women in marriage which is instituted by civil or family law. Lastly, in so far as remuneration in the public sector is fixed by reference to the post, equality of opportunity and treatment, particularly with respect to the granting of permanent status, can have a direct effect on remuneration.

208. Job classification. In Canada, the Canadian Human Rights Commission has had to consider some cases of inequality in certain sectors of the public services employing a significant proportion of women (libraries, health services and general service in the federal public service). Consideration of these questions gave rise to decisions granting equality of remuneration on the basis of job evaluation. The 1985 Pay Equity Act of Manitoba, mentioned in paragraph 205, provides in article 9 that the Civil Service Commission and bargaining agents should endeavour to conclude, no later than 30 June 1986, an agreement respecting the development or selection and application of a single gender-neutral job evaluation system to all female-dominated and male-dominated classes in the civil service and apply this system to determine and compare the value of the work performed by female-dominated and male-dominated classes. Judicial decisions made in the United States concerning the evaluation of, inter alia, the jobs of prison wardresses and women employees in hospitals were considered in paragraphs 120 and 148 above. The revision, in Australia (Tasmania) of legislation that limits the scope of comparative evaluation in the public service to work of the same or a like nature performed by men and women, is mentioned in paragraph 205. Lastly, several governments (Endnote 20) have mentioned the fact, already referred to in paragraph 201 above, that in the public sector, as elsewhere, the majority of women are employed in certain categories of jobs that are classified and remunerated at the lowest levels, and often considered as typical women's jobs. This state of affairs, which is more directly a matter for Convention No. 111, suggests a discriminatory situation which may at least to some extent correspond to an underevaluation of jobs considered as typical women's jobs, and which thus deserves consideration in the elaboration of procedures to ensure the effective application of the principle of equality of remuneration.

209. Miscellaneous allowances. In New Zealand the 1960 Government Service Equal Pay Act refers, in article 3(a), to the elimination of differentiations based on sex from salary or wage scales only, and this was an obstacle to the Government's ratification (Endnote 21) of the Convention, which also applies to "any additional emoluments" payable. At present, the wider definition of remuneration contained in the 1972 Equal Pay Act (Endnote 22) has been extended in practice to the government sector. As from 1 January 1978 the Government, after consultation with the workers' organisations concerned, approved the implementation of a package of revised administrative rules designed to eliminate discrimination against women with respect to transfer expenses, housing corporation loans, pool housing allocations, remote allowance, dependants' allowances, allowances paid to overseas recruits and study awards and bursaries. The eligibility criteria for these benefits are the same for men and women of the same marital status.

210. Benefits linked to marital status. In the public sector, the largest number of divergencies from the Convention as well as of progress cases registered since 1975, concern benefits linked to marital status, and in particular, equality of treatment for married women and married men with respect to salaries, family allowances, housing and pensions. These are examined in the following paragraphs.

211. Salaries for married officials and marriage and family allowances. In Mali, married women are classified in the same category as unmarried childless male officials for the purpose of fixing minimum monthly salaries in public sector medical and health services. (Endnote 23) Likewise in Ireland, the Irish Congress of Trade Unions in 1976 denounced the maintenance of different pay scales according to the marital status of the official, for teachers and certain public officials. In 1980 the Committee noted with satisfaction that those types of discrimination had been eliminated. (Endnote 24) Often it is additional emoluments connected with marriage that are granted taking into account sex or a "head of family" concept that favours men. In Jamaica, a marriage allowance of $200 a year is granted to male teachers in secondary schools. (Endnote 25) In Greece, under the staff rules and regulations of the Bank of Greece, the marriage allowance payable to married men could previously be higher than that payable to married women (10 per cent as against 5 per cent of the salary), since according to sections 1398 and 1399 of the Civil Code, it was the man who normally bore the expenses of the household and his liability was therefore greater than that of a married woman. In 1983, these sections of the Civil Code were repealed by Act No. 1329, and the staff rules and regulations of the Bank of Greece now make provision for a marriage allowance of 10 per cent of the salary irrespective of the sex of the worker. More generally, in Greece, Act No. 1505 of 1984 restructuring the salary scales for public service staff provides that the family allowance payable to married officials shall be paid to men and women irrespective of sex. (Endnote 26) In Luxembourg the Act of 20 May 1983 modifying the system of salaries for civil servants has established equal treatment between men and women in respect of the family allowance granted to civil servants and equivalent staff. (Endnote 27)

212. Housing. In Kenya, the Government reports that married women employed in the public service do not receive a housing allowance. In Belgium the Royal Order of 30 January 1967 granting an accommodation or residence allowance to the staff of ministries, which laid down different conditions for granting the accommodation allowance to male and female staff, has been repealed by the Royal Order of 10 September 1981, and the accommodation allowance is now paid to married staff without any distinction based on sex. (Endnote 28) In France, an order dated 2 May 1979 by the Ministers of Industry and the Budget removed the discrimination on the grounds of sex in the granting of housing allowances in the semi-public sector, which was contained in a text dating from 1946 on the staff regulations of mining and similar concerns. The discrimination resulted from the "head of family" concept applied in granting this allowance. (Endnote 29)

213. Pensions. In the Netherlands, the Commission on the Equal Treatment of Male and Female Public Servants and the trade unions have raised the question of equality of men and women in the pensions and survivors' benefit scheme in operation in the public service. At present the scheme provides unequal treatment for the income of husband and wife in calculating premiums, which determine the amount of benefits. (Endnote 30) In Tunisia, article 1 of Act No. 85-12 of 5 March 1985 on civil and military retirement pensions in the public service provides that the system is to apply to all officials of either sex in the public sector.

214. Equality of opportunity and treatment in employment. An example of the direct effect that equality of opportunity and treatment in employment, particularly with regard to permanent status, can have on equality of remuneration, is the case mentioned in paragraph 100 of the railway workers in India where, according to allegations by the Centre of Indian Trade Unions, equal pay legislation was bypassed through changing the type of contract. Even when discrimination is not intentional, the sometimes disproportionate share of women in categories without tenure in the public service, mentioned in paragraph 201, indicates a de facto inequality which is primarily a matter for Convention No. 111 but has direct effects on equality of remuneration in so far as public servants with permanent tenure -- mainly men -- and those without -- mainly women -- perform work that is equal or of equal value.

D. Supervisory machinery for the application of the principle in the public sector

215. The supervisory machinery for the application of the principle of equal remuneration, examined in Chapter IV, section 1, applies largely to the public sector, particularly where the principle is enshrined in the Constitution and can be directly invoked by the man or woman concerned before the courts, (Endnote 31) and where legislation respecting equality of remuneration which is applicable to workers in the public sector or to part of them is enforceable in court of provides for specific bodies and procedures to ensure or promote observance of the principle. In a number of countries, bodies responsible for promoting the principle of equality of remuneration have been especially set up for the public sector, (Endnote 32) and can be asked to give opinions at the request of courts seized of complaints in this field. Various governments referred in their reports to the courts and bodies more generally responsible for supervising the observance of the law in the public sector. (Endnote 33) As a rule, government reports refer to few cases of violation of the principle of equality of remuneration in the civil service.

Section 2. Application of the principle in the private sector

216. Various forms of fixing remuneration in the private sector. Unlike the public sector, the remuneration of workers in the private sector is not fixed according to a wage scale applicable to all employees that is known by each of them. Theoretically and according to traditional legal theory, remuneration is one of the elements of an employment contract to be negotiated between the two parties: the employer and the employee. In reality, however, the situation is fairly different and as a general rule, the employment contract and its principal conditions, including remuneration, do not depend only upon an agreement between two individuals, an employer and an employee, but involve other collective bodies such as employers' associations, workers' trade unions and the State. Since the beginning of the century, in industrialised countries and increasingly in other countries, a system has developed of collective agreements which are negotiated by the organisations of workers with the employers or their organisations, which set precise standards for the conditions of employment and remuneration of all the workers in an enterprise, or a sector of activity, or even a country. The State also frequently intervenes, in the role of employer and party to an agreement, or to facilitate bargaining, to extend the scope of the collective agreements that have been concluded to enterprises and workers other than those represented by the bargaining partners and, finally, to ensure observance of the law and, in particular, of the principle of equality of remuneration, where this is enshrined in a generally applicable Act. In certain countries, such as Australia and New Zealand, the state conciliation and arbitration system, in addition to its role of settling disputes, has taken on the function of the principal wage-fixing mechanism. Furthermore, the absence in a number of industries or sections of industry of an effective system of wage-fixing by collective agreement, or the existence of groups of employees whose conditions of employment are such that it is necessary to protect them, have led an ever-increasing number of States to institute, in accordance with the relevant ILO Convention, (Endnote 34) minimum wage-fixing machinery, either by setting up bodies, which are often tripartite, called upon in case of need to fix minimum wage rates, as a rule by branch of activity or, increasingly, by directly establishing a guaranteed national minimum wage, or a network of minimum wages differentiated according to occupations and regions, fixed at a national scale by the State in consultation with occupational organisations. In the following paragraphs, the problems and progress noted in the application of the principle of equality will not be examined in the historical order of the various forms of fixing remuneration sketched out here, but in inverse order, starting with the forms of wage fixing in which the State plays a determining role, before dealing with those which depend primarily on the social partners. (Endnote 35)

A. The principle of equality of remuneration within the framework of minimum wages

217. In very few countries is the principle of equality of remuneration between men and women included expressly in legal texts respecting minimum wages. (Endnote 36) However, the progress made in enshrining the principle in legislation of general application has doubtless contributed to the increasing rarity of minimum wages being overtly differentiated according to the sex of the worker. Although complete data have been supplied by a few countries only -- while the evaluation of typical women's jobs in formally neutral wage scales eludes the Committee's analysis in most cases -- it seems possible to conclude that problems nowadays concern rather the observance in practice of minimum rates established, as well as the equality of remuneration for wages that are above the legal minimum. However, a number of countries still report differences existing in the level of the rates established.

I. Women's wages: Remaining differentials and progress made towards equal rates

218. Detailed information on progress made towards the application of the principle of equal remuneration and on the remaining wage differentials under wage regulations and wages boards decisions has been supplied by Mauritius and Sri Lanka. In Mauritius, the principle of equal remuneration for men and women workers for work of equal value is reported to apply in 20 different private sectors under regulations adopted or amended over the last decade, (Endnote 37) differentials remain in the animal farm industry, the export enterprise, the salt manufacturing industry, the sugar industry (agricultural workers), the tea industry and the tobacco and vegetables cultivating industry. (Endnote 38) In Sri Lanka, wages and salaries in the private sector are regulated in nearly 45 trades by Wages Boards established under the Wages Boards Ordinance and Remuneration Tribunals established under the Shop and Office Employees (Regulation of Employment and Remuneration) Act. (Endnote 39) According to the Government's report, discrimination based on sex in the rates of remuneration of men and women workers was completely removed in the major plantation sectors (in the tea-growing and manufacturing trade and the rubber-growing and manufacturing trade with effect from 1 April 1984, and in the coconut trade with effect from 1 March 1985) resulting in benefits to nearly 300,000 female workers in these sectors, and triggering a trend towards the equalisation of wages of male and female workers in the remaining 12 trades for which wages boards have fixed different rates of minimum wages for time-work for adult male and female workers (cinnamon; coconut growing; coir, mattress and bristle fibre export; dock, harbour and port transport; brick and tile manufacturing; cocoa, cardamom and pepper growing and manufacturing; match manufacturing; paddy hulling; plumbing; rubber export; tea export; tyre and tube manufacturing, tyre rebuilding; rubber and plastic goods manufacturing). (Endnote 40)

219. Agriculture. Examples given in the preceding paragraph show that progress is being made, inter alia, in the primary sector. In Morocco, section 4 of the decree of 24 April 1973, made under the Dahir of the same date to determine the conditions of employment and remuneration of agricultural workers, (Endnote 41) established a women's minimum wage rate which was 80 per cent of the guaranteed minimum wage. With a view to ratification of the Convention, this provision was repealed by decree of the Minister of Labour and Social Affairs of 4 September 1975. Likewise, and more generally, the Dahir of 18 June 1936 respecting the minimum remuneration of wage-earning and salaried employees (Endnote 42) which provided that the minimum remuneration (for non-agricultural and for agricultural activities) was not to be lower than the rate established by decree according to the age and sex of the worker, was amended by a Dahir of 30 August 1975, deleting the reference to sex, so as to establish the principle of equal remuneration for men and women workers and permit ratification of the Convention. Similarly, in paragraph 92 of its 1975 general survey, the Committee noted that in Venezuela, separate minimum wage rates, lower for women, were fixed in the agricultural sector; (Endnote 43) at present, a single compulsory minimum wage is established for rural workers in section 1 of Decree No. 328 of 31 October 1984. (Endnote 44)

220. Sugar industry. In Barbados, the Sugar Workers (Minimum Wage) Order, 1982 (S.I. 1982 No. 21) made under section 3 of the Sugar Workers (Minimum Wage and Guaranteed Employment) Act, still provided for different wage rates for men and women on plantations and estates and for male and female general workers in factories for the years 1982 and 1983. In its report on the Convention for the period ending 30 June 1985 the Government had indicated that the Sugar Workers (Minimum Wage) Order, 1982, for all practical purposes is no longer in effect since it has been superseded by a collective agreement fixing wage rates for 1984-85 which has removed the reference to sex in the nomenclature of posts and, which according to the Barbados Workers' Union, appraises jobs without regard to sex, on the basis of the work to be performed.

221. Commerce. In Guyana, Minimum Wages Orders Nos. 3, 4, 5 and 6 of 1966, which provided for different rates of pay for men and women have been replaced by Minimum Wages Orders Nos. 5, 6, 7 and 8 of 1984, which apply to employees in dry goods stores, drug stores, hardware stores and groceries and which do not distinguish between male and female workers.

222. Differentiation by output. In Peru, section 15(d) of Legislative Decree No. 14222 of 1962, empowering the National Minimum Wage Commission to fix lower rates than the general minimum for women employed in activities where their output would notably be less than that of men, has been repealed by Legislative Decree No. 21208 of 8 July 1975. As the Committee pointed out in paragraph 23, the criterion of output, although legitimate in itself, becomes unacceptable if only women are required to show proof of their output or if different wage groups are established on the basis of the average output of each sex.

223. Light work. In Jamaica, the Printing Trade Order of 1973 provides for classes of employment and minimum wage rates, differentiated on the basis of sex, particularly for unskilled workers. Upon the Government's indication in its report on the Convention for 1977-79 that these differences must remain as the males are required to perform heavy manual chores while the females are required to perform light manual chores, the Committee noted that this did not appear clearly in the 1973 Order; moreover, even in the absence of any direct and explicit reference to sex, to consider "light work" paid at a lower rate to be typically feminine, leads to a systematic underestimation of female labour and to the maintenance, or the re-establishment, of indirect discrimination. In paragraph 95 of its 1975 general survey, the Committee noted that in Rwanda a difference was made in the minimum rates applicable to common labourers according to whether the work was classed as "heavy" or "light", and the possible detrimental effects of this for women workers remained to be evaluated. At present, Ministerial Decree No. 887/06 of 21 October 1980 establishes a single daily minimum wage which no longer differentiates between heavy and light work and which applies without distinction based on sex.

II. Payment of the minimum wage in practice

224. In paragraph 99 of its general survey of 1975 on equality of remuneration, the Committee referred to indications that there were great gaps between minimum wage standards and actual practice, particularly in industries, trades and occupations employing women in developing countries. The effects of this situation on the level of remuneration of women are all the more serious in so far as they work in sectors which tend to employ unqualified labour and where wages are fixed around the legal minimum. Among the causes of the non-payment of minimum wages the Committee cited inadequacies in the means of supervision, workers not knowing their rights and their fear of reprisals, in view of the current unemployment rates. In the reports supplied in 1985, many governments referred to the role of the labour inspection, particularly with regard to supervising the application of rules on minimum wages. Clearly, the payment of minimum wages at uniform rates is more easily supervised in practice than observance of the principle of equality of remuneration for work of equal value (see paragraph 103 et seq.). Nevertheless, it appears that many of the difficulties encountered by the labour inspection services, particularly in developing countries (Endnote 45) -- insufficient human and material resources, overburdened labour inspectors, infrequency of inspections and ineffectiveness of sanctions -- continue to hamper the action needed to ensure observance of the fixed rates.

B. The principle of equal remuneration in industrial awards

225. In Australia, minimum rates of pay in the private sector are determined by way of industrial awards and agreements made in the federal jurisdiction pursuant to the Conciliation and Arbitration Act (Endnote 46) and in state jurisdictions under corresponding legislation. In the federal jurisdiction, the Full Bench of the Conciliation and Arbitration Commission ruled in 1972 that the concept of "equal pay for work of equal value", defined as "the fixation of award rates irrespective of the sex of the workers", should be applied for female workers employed under its awards. This decision was phased in over a three-year period in June 1975. Similarly, equal pay for work of equal value has been established as a clear principle in most state jurisdictions. In Victoria, as at 28 February 1985, 194 conciliation and arbitration boards out of 204 had prescribed wage rates without reference to sex, and the few boards which have not fully implemented equal pay provisions are virtually inactive. In Western Australia, equal pay for women has been gradually phased into most awards; one of the few awards which still has different rates of pay is the Nurserymen's Award. In South Australia, almost all awards now contain provisions for equal pay; of 175 state awards, only five were found in 1984 to have references to the sex of the worker and/or to differential rates of pay on the grounds of gender. (These were: Photographers and Photographic Dealers Award; Rubber Workshops and Tyre Retreading Award; Salt, Gypsum and Plaster Industries Award; Printing and Packaging (County) Award; Hospital etc., Auxiliary Employees Award.) As a result of the adoption of the principle of "equal pay for work of equal value", the female-to-male ratio of minimum hourly wage rates went up from 78.8 in 1972 to 93.0 in 1975 and has since fluctuated between 94.0 (in 1977) and 91.3 (in 1982). In 1984, it was 92.1. These fluctuations most likely reflect different rates of award growth between industries rather than changes in relativities between female and male award rates of pay. In New Zealand, where the system of wage fixing is similar to that of Australia, the process of implementation of the Equal Pay Act 1972 (Endnote 47) through the removal of discrimination based on sex in the rates of remuneration in awards and collective agreements was completed by 1 April 1977 with certain minor exceptions. A 1979 report of a committee appointed by the Minister of Labour on Equal Pay Implementation in New Zealand, appended to the Government's reports on the Convention and Recommendation, lists nine awards dated between 1977 and 1978 not fully complying with the Equal Pay Act (these concern licensed hotel's employees; jewellers, watch-makers, engravers and die-sinkers; hospital domestic workers; butchers; clerical workers; dairy farms; furniture trade and flock, felt and feather employees; tea-room and restaurant employees; and caretakers, cleaners and lift attendants).

C. The principle of equal remuneration in collective agreements

226. Reference has been made in paragraphs 75 and 175 to the legal provisions existing in several countries which render null and void any provisions in contracts or agreements that are contrary to the principle of equal remuneration. Similarly, attention was drawn to the role of the authorities in supervising the legality of the clauses in collective agreements, particularly at the time of their registration (paragraph 153) and when collective agreements are extended to enterprises and workers that are not represented by the contracting parties (paragraphs 156 and 157). The following paragraphs will provide indications on collective agreements dealing mainly with the principle of equality of remuneration, and those which, inter alia, make provision either for observance of the principle or, more generally, for the elimination of discrimination based on sex, a review will then be made of some of the difficulties still encountered in practice and of the progress achieved in some countries in the elimination of discriminatory rates of pay in collective agreements.

I. Inclusion of the principle in collective agreements

(a) Agreements devoted to the principle of equal remuneration or equal treatment

227. In Belgium, Collective Agreement No. 25 respecting equal remuneration for male and female employees, concluded on 15 October 1975 at the national level, provides in section 3 that "equality of remuneration between male and female employees shall be ensured in respect of all the components and conditions of remuneration, including, when they are used, job evaluation systems". In Norway, following proposals made by the Equal Status Council, the Confederation of Trade Unions in Norway (LO) and the Norwegian Employers' Confederation (NAF) adopted in 1981 a framework agreement concerning equal status for men and women in working life, in which special reference is made to Convention No. 100. In Sweden, agreements respecting equal opportunities were concluded in 1977 between the Swedish Employers' Confederation (SAF), the Swedish Trade Union Confederation (LO) and the Federation of Salaried Employees in Industry and Services (PTK). These agreements were revised and consolidated in 1983 in a single agreement respecting equality of opportunities which takes into account the Act of 1979 respecting equality between men and women at work. (Endnote 48) This agreement covers the whole of the private sector in Sweden and envisages among its objectives, equal opportunities for men and women in employment and equal remuneration for men and women for equal work.

(b) Conventions referring to the principle of equal remuneration or equal treatment

228. In its general survey of 1975, the Committee noted that a number of collective agreements set forth the principle of equal remuneration as it was stated in the labour codes (Endnote 49) or which referred explicitly to ILO Convention No. 100 and to equality of remuneration for work of equal value. (Endnote 50) At the present time the legislation in a number of countries requires the inclusion of the principle of equal remuneration in all collective agreements (Haiti) (Endnote 51) or requires that collective agreements contain provisions in this respect if they are to be extended to enterprises and workers not represented at the negotiations (France), (Endnote 52) Luxembourg (Endnote 53).

229. Agreements referring to equal remuneration. In France, the principle of equal remuneration was expressly referred to in 31 of the 304 collective agreements in force on 31 December 1983. In the majority of cases this consisted of a simple reference to the principle (Endnote 54) for example, the collective agreement concerning leather and skins set out in section 27 bis (added by agreement of 27 November 1972) the principle of equality in real wages for men and women in jobs of equal value and under the same conditions. In Luxembourg, the principle of equal remuneration appears in the texts of several collective agreements. In Portugal, seven agreements concluded in 1974 contained provision on the principle of equal remuneration (representing 3.6 per cent of the total); in 1980 only one agreement referred to the principle (0.4 per cent of the total), while in 1981 the percentage rose to 1.4 per cent. (Endnote 55) In Benin, section 31, paragraph 1 of the General Collective Labour Agreement, of 17 May 1974, which is applicable to undertakings in the private sector, (Endnote 56) provides that where their work, length of service and skills are equal, workers shall receive equal remuneration regardless of their sex. Section 45, paragraph 2 of the common basic provisions of collective agreements in Gabon, and the inter-occupational collective agreement of 1982 which is currently in force in Senegal repeat, according to the Governments' reports, the provisions of the Labour Codes respecting equal remuneration (referred to in paragraph 53 above). In Ecuador, the collective agreement signed in 1985 between the industrial enterprise "Lagarto Cia Ltda" and the workers' committee of the enterprise provides in section 12 that the enterprise shall bring workers' wages into conformity with the principle of equal remuneration for equal work, as laid down in section 78 of the Labour Code. (Endnote 57)

230. Agreements referring to equality of treatment. In Tunisia, the General Collective Agreement of 1973 (Endnote 58) provides in section 11 that "This agreement shall apply equally to workers of both sexes. Girls and women who fulfil the requirements may engage in all occupations on an equal footing with youths and men, without discrimination as to classification or remuneration." In Mali, the new collective agreement for mining societies and enterprises, concluded on 24 May 1985, re-affirms the principle of non-discrimination between workers of both sexes in respect of access to employment, working conditions and remuneration. (Endnote 59) In Canada, collective agreements such as those in force between INCO Metals CO (Manitoba Division) and USWA Local from 14 December 1981 to 15 September 1984, and the Agreement of 4 December 1978 concluded between the "Associated Clothing Manufacturers of the Province of Quebec, Inc." and "Montreal Clothing Contractors Association, Inc." prohibit discrimination, inter alia, on grounds of sex. Similarly in the United States, collective agreements such as the National Agreement for 1979-82 between the General Electric Company and the International Union of Electrical, Radio and Machine Workers (AFL-CIO) and its local affiliates GE-IUE (AFL-CIO) and the agreement in force between Munsingwear, Inc. and the Amalgamated Clothing and Textile Workers' Union from 23 May 1981 to 22 May 1983 forbid discrimination on the grounds, inter alia, of sex.

231. Asymmetric conditions for equal remuneration. Some collective agreements concluded during the last decade still provide that women shall receive the same wage rates as men when they carry out the same work as that done by men, (Endnote 60) or that female employees shall receive equal wages for work that is equal to that of men when they are engaged in comparable activities and produce a product of comparable quantity and quality. (Endnote 61) When the result of such formulae is that only women are obliged to prove their output or the nature of the work they are performing in order to be able to receive the wages corresponding to the job, while men automatically receive these wages (considered as male wages), equality for the purposes of the Convention is not ensured. (Endnote 62)

II. Some problems and progress observed in the application of the principle in collective agreements

(a) Direct forms of discrimination: wage scales differentiated on grounds of sex

232. Collective agreements in the past frequently provided for differentiated wage rates for men and women. But following the adoption of the Convention, there has been a progressive movement in all countries towards single scales applicable to workers without distinction as to their sex. At present, the majority of collective agreements no longer contain wage rates that are differentiated by sex, although certain discrimination still persists. The following paragraphs provide some examples.

233. The Committee has referred in its comments with regard to Argentina, (Endnote 63) to Agreement No. 25/75 for the dressmaking industry, which, although it stipulates that female employees shall receive wages equal to those received by male employees when they carry out tasks in the various sectors of production, contains two wage scales for the same activities, a higher one for male employees and a lower one for female employees. According to these scales, female employees earn from 4 to 8 per cent less than male employees for the same type of employment. In Switzerland, a survey carried out in October 1977 showed that there were many collective agreements which still provided, on no obvious grounds, for minimum wages that differed between men and women, in particular in the pasta, cocoa, chocolate, cotton, linen, ready-made clothing, tailoring, lingerie, fancy leather goods industries, in the graphic arts and book-binding, the chemical industry, retail trade in footwear and textiles, and in cleaning. (Endnote 64) In this country, the authorities refuse to extend to enterprises and workers not represented at the negotiations, the binding force of collective agreements which provide for different minimum wages for men and women if they carry out work of equal value. However, the great majority of collective agreements are not meant to be extended. The Swiss Federation of Trade Unions, in its comments with regard to the application of the Convention for 1983-85, states that as from 1 January 1984 there have been no further wage differences for work of equal value in the chemical industry in Basel-City, Basel-Country and Fricktal. This progress has been achieved as a consequence of the adoption in 1982 of a plan to bring about wage equality for men and women by raising women's wages in four stages. According to the same organisation, major progress has been achieved in the food industry and in consumer co-operatives, but negotiations have failed in the watch-making industry.

234. In Portugal, the Committee on Equality in Work and Employment (CITE) states, in pages 105-106 of its 1982 report (already referred to in paragraph 229), that among the most common types of discrimination found in collective labour agreements, the inclusion of occupations and occupational categories specifically and exclusively meant for women stand out. "The relatively small number of collective labour agreements which contain explicit wage discrimination does not attenuate its importance. In this type of agreement there are cases where different wages are attributed to identical occupations or occupational categories and others presenting discrimination with respect to occupations or professional categories that are nominally different, but where the content is exactly the same. Explicit wage discrimination values are very significant in reported cases in 1981; the differences are in the order of 10 per cent, 23 per cent, 28 per cent and 50 per cent." In its report on the Convention for 1981-83, the Government of Portugal stated that there are less and less collective agreements containing directly discriminatory provisions: 8 (4.1 per cent) in 1979, 3 (1.8 per cent) in 1981, 2 (0.7 per cent) in 1982 and none in 1983. Furthermore, the Government refused the extension of seven collective agreements concluded in 1980 which provided for discrimination in wages. (Endnote 65) In India, according to the comments of the Centre of Indian Trade Unions with regard to the application of the Convention for 1983-85, many collective agreements continue to provide for differentiated wages between men and women, even after the adoption in 1976 of the Act respecting equal remuneration. (Endnote 66) An agreement concluded in January 1985 in the beedi industry (Indian cigarettes) in Bihar (where this industry employs more than 80,000 workers, the majority of whom are women) provides that women shall receive Rs.6.10 for the rolling of 1,000 beedis, while men shall receive Rs.9.50. Similarly, in Gujarat, Uttar Pradesh and Madhya Pradesh, where women constitute 80 per cent of the workforce in the beedi industry, they earn between Rs.3 and 4 less than men for work of the same nature, which, according to the Centre of Indian Trade Unions, is the reason for the employment of a female labour force and for the transfer of work from the factory to homes. The persistence of wage differentials has also been noted in plantations, by the Simla employment bureau in 1980, and in Assam, where the wage differentials between men and women are due, according to the Centre of Indian Trade Unions, to an understanding between a number of trade-union leaders and the managements of the plantations. In Karnataka, inequalities in remuneration existing in plantations in 1983 (jobs were classified into two categories, with women always being classified in the second, less well paid, category) were, however, abolished by the last collective agreement, which was concluded in 1985. According to the same comments, one very important section of women, i.e. those employed in agriculture, earn lower wages than men even for work of the same nature, including harvesting, except in West Bengal and Tripura, where the State Governments try to enforce equal wages.

235. In Jordan, the collective agreement concluded between the Jordan Felt Manufacturing Company and the General Union of Textile Workers provided for wage differentials based on sex. According to the Government's report supplied under article 22 for 1979-81, the Government obtained from the Management Board of the Company a decision (of 19 February 1980) which, according to the Government, grants important rights to men and women for equal work. The Government of Jordan also referred (Endnote 67) to inequalities of remuneration between male and female employees which can still be found in a number of enterprises. It considers, however, that collective agreements are an important means of abolishing such inequalities. The Government of Belgium points out in its report on the Recommendation that an administrative unit set up within the Collective Labour Relations Service of the Department of Employment and Labour analysed the collective agreements in force in 1976 and drew up a report bringing to light a number of cases of direct discrimination, which, however, were not numerous. This report was transmitted to all the joint committees, with the request that they should examine all the collective labour agreements within their competence and bring them into conformity with Collective Agreement No. 25 respecting equal remuneration (see paragraph 227). Since then, the social partners have shown their intention to eliminate from newly concluded texts all traces of direct discrimination and any continuing anomalies in the determination of wage conditions have progressively disappeared. For example, the differentiated wages for men and women drawn up at each level of the occupational classification in four subsectors of the food industry disappeared in 1978, and the occupational classification of the Sub-Commission of the Port of Antwerp, where the two lowest categories were reserved for women, has also been amended in order to abolish discrimination. According to the Government, the obligation to append National Collective Agreement No. 25 to the works rules of the enterprise has had a positive effect on the negotiated element of wages. (Endnote 68)

236. The Government of Austria stated in its reports for 1981-85 on the Convention that the discriminatory provisions found by the experts to whom it had given the task of analysing around 500 collective agreements that were in force in March 1978, have to a large extent been abolished within the framework of new collective agreements concluded after the adoption of the 1979 Act respecting equality of treatment. (Endnote 69) Thus, the distinct wage categories for men and women and the wage differentials prejudicing women, which still persisted in the collective agreement of agricultural workers in the provinces of Vienna, Lower Austria and Burgenland, were abolished in the collective agreement of 1 March 1985, which introduced a uniform wage scale for the agricultural workers concerned. According to the report by the Government of Iceland concerning the Convention for 1983-85, all collective agreements are based upon the principle of equal remuneration, but there are many indications that there is a distinction between the sexes as regards the payment for overtime and other additional emoluments.

(b) Indirect forms of discrimination

237. Although discrimination in respect of the wage rates paid to women have to a large extent been eliminated in collective agreements concluded during the last decade in many countries, several governments and trade-union organisations have drawn attention to less evident forms of discrimination that can still persist, with regard to the choice of methods of remuneration, the criteria for the classification or evaluation of jobs or the granting of benefits that are linked to the marital and family situation of the beneficiary.

238. Classification and assessment of jobs. Reference has already been made in paragraph 234 to the comments of the Committee on Equality in Work and Employment (CITE), of Portugal, in its report of 1982, that a number of collective agreements provide for wage differentials for nominally different occupational categories, whose job contents, are, however, exactly the same. According to the comments of the General Union of Workers (UGT) concerning the application of the Recommendation, which were transmitted in April 1985, such collective agreements are to be found particularly in the agricultural sector; for example, the Beja collective labour agreement (BIE No. 40 of 29 October 1984), provides for two wage levels for agricultural workers, level A for men, and level B which is applicable to women although the work done is in practice the same. The elimination of a similar practice in the plantations in Karnataka (India) in 1985 has been mentioned in paragraph 234. In the Federal Republic of Germany, a report submitted by the Government to Parliament in 1980 stated that it had not yet been possible to entirely abolish "light wage groups" which originated from the former "women's wage groups". (Endnote 70) In its report concerning the Convention for 1981-83, the Government transmitted the comments of the German Trade Union Federation (DGB) that the number of collective agreements referring to "light wage groups" (in which a distinction was made between physically heavy and light work in the lower wage groups), had fallen from around 90 a few years before to 30 in 1982 and 15 in 1983, which applied to a limited number of wage groups concerning relatively few workers. The Government of Belgium states in its report on the Recommendation that forms of indirect discrimination could persist in job evaluation criteria and that a number of classifications were defined in sufficiently broad terms to permit varying interpretations. The Collective Labour Relations Service of the Ministry of Employment and Labour is carrying out a systematic examination of collective labour agreements in order to bring to light the few remaining indirect forms of discrimination with a view to their elimination. The Government of Austria considers in its report on the Convention for 1983-85 that once specific references to gender in the designation of activities are eliminated, it is no longer possible to demonstrate directly, in the absence of appropriate objective assessment criteria, the extent to which the social value judgements contained in evaluation methods are implicitly influenced by the fact that certain activities are principally (or exclusively) performed by women or by men. According to the Government, the value of a specific activity is primarily a question of social policy, which simply cannot be replaced by "objective" methods of evaluation. It would appear to the Committee that, in so far as the implementation of the Convention depends on a question of social policy, the Government's responsibility is directly involved. However, the social policy of a number of countries where measurable progress has been made in the elimination of wage discrimination, is concretely based inter alia, on the elaboration of criteria aimed at identifying and correcting sex bias in the evaluation of jobs.

239. Method of remuneration. In its report on the Recommendation, the Government of Canada transmits the comments of the Quebec Department of Labour that the project established with the Research Department of the Ministry of Labour for examining collective agreements with a view to identifying discriminatory clauses could not be continued following the intention expressed by the trade unions and the employers' side to intervene themselves, in this case. The analysis of the content of a number of collective agreements had then illustrated that women were relegated to the less well paid jobs. In other agreements, different wage lists were found for the same jobs or the method of payment was different: men were paid by the hour while women were paid at piece-work rates.

240. Benefits linked to marital status. In Belgium, forms of indirect discrimination have been found in collective agreements for food shop chains following an examination carried out in 1983 by the Committee on Women's Work. These forms of discrimination consist of non-statutory bonuses, such as non-statutory family allowances automatically granted to male employees with children but only granted to women when they prove their status as head of the family. In France, according to a report examining the application of the principle of equal remuneration in national collective agreements transmitted in 1984 to the National Collective Bargaining Commission and communicated by the Government in its report on the Convention for 1983-85, collective agreements do not expressly depart from the principle of equal remuneration but nevertheless certain rights are still not open in an equal manner to men and women, particularly rights linked to the family situation. In Ghana, the collective agreement concluded between the Industrial and Commercial Workers' Union and the Restaurant Hong-Kong provides that references made to male employees include female employees except where male employees are specified. According to section 20 of the same agreement, the employer shall pay the medical and pharmaceutical expenses of his employees and their families, that is to say a wife and three children. In Sierra Leone, the Collective Agreement concluded between employers in the services trade group and the Artisans', Ministry of Works Employees' and General Workers' Union, the Municipal and Local Government Employees' Union, the Provincial and General Workers' Union and the Transport and Agricultural Workers' Union in July 1985, provides in section 9(e) that the provision of medical services, where they exist, shall be extended to the families of workers, stipulating that by family is meant the spouse and three children of less than 18 years of age. Also in Sierra Leone, in accordance with a number of collective agreements (the hotel, restaurant and show business industries) in the event of transferral of the employee, the employer shall pay all the expenses incurred by the employee, his wife and three of his children. At the request of the Committee, the Government of Sierra Leone stated that, in practice, "this provision applies to any female employee who submits her claims to the employer". The Committee considers that, consequently, the terms of the provisions should be explicitly brought into conformity with practice. It recommends in such cases the use of the expression "spouse" in order to avoid discrimination that may arise from strict application of the provisions. In Zaire, according to the Government's report on the Convention for 1983-85, section 30 of the National Inter-Occupational Collective Labour Agreement, revised in 1980, limits the equality of benefits to men and unmarried women or women whose husbands have no known employment. The Committee refers to the indications made in paragraph 15 in this respect. To avoid discrimination under the Convention in the payment by the employer of benefits based on the marital status or the children of a worker not to constitute discrimination contrary to the provisions of the Convention, such payments must be made without applying conditions on grounds of sex.

D. The principle of equal remuneration in individual labour contracts and effective wages

241. Several governments have reported on difficulties and progress in applying the principle of equal remuneration to effective wages. As recalled in paragraph 216 above, employment in the private sector differs from public service in that remuneration is not fixed according to a uniform wage scale which applies to all employees and is known by each of them; it is composed of various elements which may include, besides an amount fixed by minimum wage legislation, industrial award or collective agreement, additional elements agreed upon by individual contract or otherwise granted by the employer to individual employees or groups of employees. If in various countries the principle of equal remuneration is found difficult to enforce even in the effective payment of minimum wages fixed by authority, or in the establishment of an equal wage structure by collective agreement, both enforcement agencies and the victims of discrimination face an additional difficulty when it comes to individual wage rates.

242. As pointed out by the Government of Australia, in information supplied for Western Australia with respect to employees who are not employed subject to the conditions of any particular award, the fact that the contract of service is determined through negotiations between the employer and employee and that the rates of pay are not published nor necessarily known by fellow award-free employees engaged in the same company or industry, makes it difficult for employees to take action or substantiate claims of not receiving equal pay for equal work. Even where men and women are employed under an industrial award, according to the Australian Confederation of Trade Unions, (Endnote 71) over-award, (Endnote 72) bonus etc. payments made to female employees are generally less than those made to male employees. The ACTU is collecting data on areas where male and female employees are doing the same or similar work and receiving different over-award payments, and discussions are being held with the Federal Government's Human Rights Commission to see whether the question of discrimination against female employees in over-award payments can be tested as a breach of the Federal Sex Discrimination Act of 1984 (see paragraph 70 above). Chapter IV provides a number of examples showing how the principle of equal remuneration laid down in legislation of general application (reviewed in Chapter III) is enforced in respect of various benefits through specialised bodies and the courts.

243. Several governments have supplied statistical data on the relation between average earnings of women and men. Differences in average earnings may have other causes than unequal remuneration for work of equal value: for instance, the Government of Australia has pointed, inter alia, to the younger age structure of the female labour force, career interruptions through child bearing and rearing responsibilities and a lower average educational attainment of women in the labour force. Nevertheless, after the concept of equal pay for work of equal value was adopted in Australia by the Conciliation and Arbitration Commission (see paragraph 215 above), the female to male ratio of average hourly ordinary time earnings (which include agreed or award base rate of pay, payment of measured result and over-award and other pay) went up from 76.0 in 1972 to 88.2 in 1977 and was at 85.0 in 1983. In Finland, the average earnings of women among the office personnel in the insurance branch is 72.1 per cent of the men's earnings, but a more detailed analysis by years of service shows that after two, five, nine and twelve years of service respectively the ratio of women's to men's wages is 89.6 per cent, 92.2 per cent, 89.5 per cent and 92.7 per cent respectively. According to comments by the Central Organisation of Finnish Trade Unions (SAK) and the Confederation of Salaried Employees (TVK) on the application of the Convention for 1983-85, the remuneration statistics indicate that female-dominated fields of employment are as a rule characterised by lower earnings than male-dominated fields, although the proportional earnings of women in female-dominated fields are considerably closer to the earnings of men than in male-dominated fields. The difficulty of changing existing patterns is illustrated by a problem concerning pay inequality as well as wage statistics, mentioned by the Government of Norway in its report on the Convention for 1983-85: the Equal Status Ombud has received a number of approaches from women whose pay has probably been fixed with reference to the Norwegian Employers' Confederation's wage statistics which incorporate a division into women's pay and men's pay, and which show women's pay to be lower than men's pay. Upon inquiry, the Confederation itself stated that the sex-specific statistics are not intended to be a guide-line for wage fixing, but are simply a report of existing conditions. This view coincides with that of the Ombud.

Endnotes

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Legislation

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Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35